ANSHUMAN SINGH, J. - (1.) THIS petition under Article 226 of the Constitution of India is directed against the order dated March 18, 1996, passed by the Income -tax Appellate Tribunal, Jaipur Bench, Jaipur, on stay Applications Nos. 18 and 19/(JP) of 1996 arising out of Estate Duty Appeal No. 1/(JP) of 1996 and Wealth -tax Appeals Nos. 6 to 12/(JP) of 1996 for the assessment years 1985 -86 to 1990 -91 and 1992 -93 directing the petitioner to deposit 25 per cent. of the outstanding demand payable under the Estate Duty Act and the Wealth -tax Act for the years under appeal on or before April 30, 1996. The recovery of the balance outstanding demand under both the Acts for the years under appeal has been stayed till the disposal of appeals by the impugned order. The present petition came up for admission on April 18, 1996, however, on the request of learned counsel for the petitioner it was ordered to be listed on April 19, 1996. In view of the fact that the Tribunal itself directed the appeals to be fixed for hearing in the second week of May, 1996, it was thought proper to dispose of the petition finally at the admission stage itself. Since the matter was proposed to be finally disposed of, learned counsel for the petitioner was directed to supply a copy of the petition to Mr. G.S. Bapna, standingcounsel for the Revenue, in order to give opportunity to the Revenue to oppose the writ petition. Mr. N.M. Ranka, learned counsel for the petitioner, made a statement in court that Mr. G.S. Bapna who was earlier counsel for the Revenue has resigned. It was stated that in his place, Mr. Virendra Dangi has been appointed and as such, learned counsel for the petitioner was directed to approach Mr. Virendra Dangi who too informed learned counsel for the petitioner that he had also resigned. It is unfortunate that there is no standing counsel to represent the Revenue at Jaipur Bench in cases filed against the Revenue. In view of the said fact, the court is left with no option but to proceed to decide the case on the basis of the submissions made on behalf of the petitioner. After hearing the argument of learned counsel for the petitioner, orders were reserved and in the meantime an additional affidavit has been filed on April 24, 1996, by the petitioner by means of which, he wanted the papers annexed to the aforesaid additional affidavit to be brought on record and also the facts to be considered stated in the additional affidavit. It has been averred that after the hearing of the petition was over the petitioner received a rectification order and two letters which he has filed along with the additional affidavit. I have perused the contents of the additional affidavit and I am of the opinion that the facts contained in the affidavit and the documents annexed thereto are relevant for the decision of the case and as such, the additional affidavit is ordered to be placed on record. Before dealing with the submission raised on behalf of the petitioner, it is necessary to narrate the relevant facts of the case, which run as under :
(2.) MAHARANA Shri Bhagwat Singhji of Mewar, the former Ruler of the State of Mewar, died on November 3, 1984. His late Highness Maharana Bhagwat Singh, son of His late Highness Maharana Bhupal Singh, Udaipur, left the last will dated May 15, 1984, and appointed (i) Shri Arvind Singh of Mewar, son of His late Highness ; and (ii) Shri A. Subramaniam, son of Shri T.S. Appu Aiyer, as executors of the said will. The executors made a petition for probate in the Rajasthan High Court at Jodhpur which was registered as S.B. Testamentary Case No. 1 of 1985. The probate of the will was granted by this court on November 13, 1987, and the certificate dated February 15, 1992, was issued in favour of the executors by the Registrar of this court. The executors have undertaken to administer the same and make full and true inventory of the said property and credits and exhibit the same in the court within six months from the date of grant as also to render to the court a true account of the said property and credits. Thereafter, Rajmata Sushila Kumari and others filed appeal before the Division Bench of this court against the order of the learned singlejudge dated November 13, 1987, granting probate in respect of the will dated May 15, 1984, which was registered as D.B. Civil Special Appeal No. 24 of 1988 and the Division Bench of this court vide its judgment dated May 12, 1993, dismissed the aforesaid appeal with costs. The executor, Shri Mahendra Singh, son of His late Highness Maharana Shri Bhagwat Singhji, preferred a special leave petition being S. L. P. (Civil) No. 10313 of 1993 before the apex court against the order dated May 12, 1993, passed by the Division Bench of this court rejecting the appeal filed by Rajmata Sushila Kumari and others. Consequently, the said special leave petition was also dismissed by the apex court on May 9, 1994. It appears that the District Judge, Udaipur, passed an order dated December 2, 1995, [?], on the civil suits filed by Shri Mahendra Singh and others against which miscellaneous appeals were filed by Shri Mahendra Singh and others in this court. The said appeals were disposed of by this court on June 11, 1993, and directions issued by this court in the aforesaid appeals were as under : ' It is directed that Shri Arvind Singh shall render true and correct account of the suit properties, i.e., immovable and movable properties, which are in his possession, management and control. He should also render the true and correct account of the income arising out of these properties since 1983 and onwards. It is further directed that Shri Arvind Singh will allow the access of Shri Mahendra Singh to the account maintained in respect of income arising out of immovable and movable properties, which are in the possession and control of Shri Arvind Singh, as and when Shri Mahendra Singh wants to see the accounts of income of these properties, maintained by the executors. He should file the true and correct account of income arising out of these properties duly audited by the chartered accountant in the trial court within two months from the date of this order. Thereafter he will continue to submit the above account every year by end of May. It is further ordered that Shri Arvind Singh, an executor of the will of Maharana Bhagwat Singh (defendant No. 1), his agents servants or officers are further restrained from disposing and/or alienating or otherwise dealing with the suit properties till decision of the suit.' It has been averred that in pursuance of the aforesaid order of this court the petitioner is maintaining regular and proper books of account as well as the details of movable and immovable properties of the late Highness Maharana Shri Bhagwat Singhji and the same are being audited by a chartered accountant. From the perusal of the directions issued by this court on June 11, 1993, there is no room for doubt that the petitioner has been restrained from disposing, alienating or otherwise dealing withthe suit properties during the pendency of the civil suits. It appears that the assessment proceedings for the assessment years 1985 -86 to 1990 -91 and 1992 -93 under the Estate Duty Act as well as under the Wealth -tax Act were initiated against the petitioner. The Assistant Controller of Estate Duty made assessment under the Estate Duty Act on January 20, 1989, computing the taxable estate at Rs. 44,01,892. The appeal was partly allowed by the appellate authority on December 12, 1990. Thereafter, the respondents issued a notice under Section 59 of the Estate Duty Act on September 23, 1991. The younger son of the late Maharana, Shri Arvind Singhji, who was also one of the executors of the will, declared the value of the estate at Rs. 25,12,762. The value of the estate was, however, declared at a very high figure by the elder son of the late Maharana Shri Mahendra Singhji at Rs. 5,47,29,091. Assessment under the Estate Duty Act was thereafter completed on May 31, 1993, computing the taxable estate at Rs. 7,50,24,227. An appeal was again filed and the appellate authority allowed the appeal in part vide order dated December 6, 1993. The taxable estate was recomputed at Rs. 1,16,78,140 and the estate duty was determined at Rs. 88,91,419. Three appeals were filed before the Tribunal, one by the elder son of the late Maharana, Shri Mahendra Singhji, the second by the younger son, Shri Arvind Singhji, and the third by the Revenue. The Tribunal consolidated all the appeals of all the accountable persons. The matter was, therefore, again heard by the appellate authority under the Estate Duty Act and as per the appellate order dated November 22, 1995, the taxable estate of the late Maharana has been valued at Rs. 1,42,55,498. An amount of Rs. 1,17,72,287 has been determined as the estate duty payable under the Estate Duty Act. A sum of Rs. 23,13,249 is said to have been paid so far. Similarly, the assessment proceedings under the Wealth -tax Act were also initiated against the petitioner for the assessment years 1985 -86 to 1990 -91 and 1992 -93 which culminated in filing seven appeals before the Income -tax Tribunal which are pending. Two stay applications were filed before the Income -tax Tribunal, Jaipur Bench, Jaipur, on behalf of the petitioners for staying the recovery of the impugned tax. The additional affidavit which has been filed by learned counsel for the petitioner reveals that the Additional Controller of Estate Duty, Udaipur Range, Udaipur, vide his order dated April 18, 1996, has rectified the liability of the petitioner under the estate duty which has been reduced to Rs. 90,89,740 out of which, the petitioner has already paid Rs. 22,13,249 and the balance payable by the petitioner remains only Rs. 68,76,491. Since the facts were identical in both the stay applications, they have been disposed of by a common order by the Tribunal on March 18, 1996. The first submissionmade by learned counsel for the petitioner is that the Tribunal has not applied its mind judiciously to the facts and the relevant laws governing the grant of stay and the directions for deposit 25 per cent. of the impugned tax by the Tribunal is wholly erroneous and arbitrary in view of the fact that the Tribunal itself has stayed the rest of the impugned tax till the disposal of appeals. I have carefully perused the impugned order passed by the Tribunal. Though it runs into 13 pages, the major portion of the order relates to the factual aspects of the case which have not much relevance while disposing of the stay applications. Learned counsel for the petitioner urged that the factors which are relevant for deciding the stay applications primarily are ; prima facie case, balance of convenience, financial status of the petitioner, hardship and also the interest of the Revenue which is likely to be caused in case the recovery is not stayed. The main thrust of the contention raised on behalf of the petitioner is that in view of the order passed by this court dated June 11, 1993, the petitioners are not in a position to pay the impugned tax. The order dated June 11, 1993, passed by this court restraining the petitioner from alienating/disposing of the properties, clearly indicates that even if the petitioner wants to dispose of the properties, assign or mortgage in order to enable him to deposit 25 per cent. of the impugned tax as directed by the Tribunal, he cannot do so and as such, it is utterly impossible for him to make any arrangements for the payment of 25 per cent. of the impugned tax as ordered by the Tribunal. It has also been urged by learned counsel for the petitioner that the petitioner has only been performing the duties as trustee of the properties including movable or immovable which are under the control of the court. It was further submitted that in view of the said fact the petitioner is unable to arrange funds. So far as the interest of the Revenue is concerned, the same is fully secured as the property is in custodia legis. From the perusal of the impugned order it is abundantly clear that this fact is not disputed that all the assets continue to be under the control and supervision of the District Court. Learned counsel for the petitioner vehemently urged that the Tribunal has not assigned any reason as to why only 75 per cent. of the impugned tax should be stayed and the petitioner may be forced to deposit 25 per cent. of the impugned tax before the appeals are heard. The submission raised on behalf of the petitioner appears to have sufficient force. The perusal of the order passed by the Tribunal does indicate that the Tribunal was fully conscious of the economic stringencies faced by the petitioner which appealed to the conscience of the Tribunal for staying 75 per cent. of the impugned tax, but it does not stand to reason that if on the same premises the Tribunalhas postponed the recovery of 75 per cent. of the impugned tax till the disposal of the appeals, there appears to be no material facts which could warrant the directions for deposit of 25 per cent. of the impugned tax. From the perusal of the order of the Tribunal, it also appears that the Tribunal has been swayed by the orders of the appellate authority under which the demand has been created while disposing of the stay applications. The orders of the appellate authority creating liability have no relevance. The Tribunal was supposed to apply its own mind by applying criteria for grant of stay. The Tribunal in its order in spite of taking note of the fact that the properties are not available for sale or alienation because of the directions given by this court on June 11, 1993, the Tribunal observed that it is for the executors of the legal heirs to find out ways as to how to pay the Government dues. The aforesaid observation of the Tribunal is neither judicious nor legal and in fact, is arbitrary in nature. Once it is established that the petitioner has no cash in liquid with him, he cannot dispose of/alienate in any manner the properties in view of the restraint order dated June 11, 1993. In what manner and ways he is supposed to make arrangements for paying the impugned tax. It is also clear that the petitioner had filed the stay applications for staying the total recovery and had also prayed for early hearing of the appeals. The prayer for early hearing of the appeals was seriously opposed by the Revenue, but the Tribunal taking into account the entire facts, interest of the petitioner as well as the interest of the Revenue rejected the plea of the Revenue and directed that the appeals be fixed for hearing in the second week of May, 1996. It has also been urged on behalf of the petitioner that in view of the fact that the hearing of the appeals was to take place in the second week of May, 1996, there appears to be no legitimate reason for compelling the petitioner to deposit 25 per cent. of the impugned tax on or before April 30, 1996, i.e., just before ten days of the hearing of the appeals. The perusal of the impugned order passed by the Tribunal also indicates that the contention raised by the petitioner before the Tribunal for staying the total recovery was not controverted and no relevant and convincing material regarding the financial status of the petitioner was placed before the Tribunal to establish that the petitioner was in a position to deposit 25 per cent. of the impugned tax. The main plea of the learned counsel for the Revenue before the Tribunal was that the remedies available to the petitioners have not been fully exhausted, therefore, stay applications were premature and should be rejected on that score alone, but the said plea did not find favour with the Tribunal and the Tribunal was of the view that the stay applications filed before the Tribunal were maintainable.
(3.) THE aforesaid submission, in my view, has sufficient force and deserves to be accepted. In view of the facts stated above, learned counsel for the petitioner urged that the impugned order passed by the Tribunal directing the petitioner to deposit 25 per cent. of the impugned tax is arbitrary, erroneous, based on conjectures and surmises and cannot be sustained in the eyes of law.;